April 12, 2019

Is it Closing Time for Reopener Provisions in CERCLA Natural Resource Damages Settlements?

Amanda Halter and Ashleigh Acevedo

Natural resource damages (NRD) have been critically referred to as the “sleeping giant” of environmental liability. The specter of potentially outsized recoveries continues to loom large, especially after the Deepwater Horizon oil spill thrust such claims into the public consciousness in a way not experienced since the Exxon Valdez oil spill and at a scale that makes even the most financially-solid responsible party shudder. Conceived as a civil remedy to make the public whole for injured natural resources through restoration projects that aim to restore, replace, or acquire natural resources equivalent to or greater than those injured by a spill or release of hazardous substances, the inherent uncertainty of an NRD assessment exercise makes it practically difficult and plagued with unpredictability. The real specter for NRD, though, may not be the unpredictability, potential size, or even the growing number of such claims, as it is the little-known fact that too many NRD cases—particularly under CERCLA—linger unresolved for far too long, often more than a decade, delaying restoration benefits to the public and racking up transaction costs without real return.

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